[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome our guest today, Mark Osler.

He is the distinguished Chair in law and director of legal clinics at the School of Law at Saint Thomas.

A pleasure to be with you today, sir.

Thanks for your time.

No.

Thank you.

I'm looking forward to it.

You're an expert in this arena of executive clemency.

And I wanted to start by asking you about the state of clemency across our 50 states and federally.

Yeah.

it's a wild and wacky world out there in terms of clemency.

And because people assume that there's, a pattern to it or that we see trends that, are national.

But the truth is, it's really atomized, that the 50 states have very different systems for analyzing and passing and clemency petitions, although they all have some kind of process to do so.

So we do have uniformity in terms of, you know, all 50 states in the federal system have a clemency path, but they're very, very different from each other.

And what we see generally is that the states that are productive, that do a lot of clemency, aren't the ones that we might expect.

They're not California and New York.

They're not the blue states.

Often it's the red states that lead in, one of the most productive states, for example, has been South Carolina.

One of the things that this tells us is that there's something at work here that goes beyond the surface politics that we're usually used to looking at.

Is that because there more miscarriages of justice in the first place, in states that justify the use of clemency?

Or is it because of a more compassionate public policy in those states that are, like South Carolina, more frequently using it?

Yeah, well, I wouldn't say that it has to do with, you know, necessarily miscarriages of justice because most of the clemency we see in the United cases, in the form of a pardon.

It's given to someone who's been out of prison for a while and has that, you know, some measure of forgiveness given, for that, that previous crime.

Sometimes we hear about commutations, which are the form of the pardon power that shortens a sentence but doesn't affect the underlying conviction.

That's usually pardons that we see.

And I think there's two things that really correlate to a productive system that aren't political.

The one is the will to do it.

And the second is a process that functions well.

That allows a fair number to be granted.

And in South Carolina, it's interesting.

The process that they have there is pretty apolitical that they have a, clemency commission that makes the decisions directly.

In other words, it doesn't go through the governor or elected officials.

So there's the will of the people on that commission in a process that allows it to proceed pretty well.

You know, other places it's been very different.

And, you know, for example, in New York state, we've had, a real paucity compared to the size of the system there of clemency.

And largely that's because of a lack of will to do it.

A lack of will.

The perception would be that it's politics that stymies any attempt to do it.

In your mind, you know, when you talk of the clemency powers both gubernatorial and presidential to issue pardons, commutations, reprieves, remissions of fines and fees.

What, in your mind differentiates those things from each other?

Pardon, commutation, reprieve, remission of fines and fees.

And is it just the politics of this era, as opposed to a higher standard or more rigorous application of when those things are justified?

Yeah.

Well, I mean, first, to differentiate them.

As I said before, a pardon is going to forgive the underlying conviction.

If someone's in prison, they'll be released.

Commutation is going to shorten the sentence.

Usually that's for people who are in prison.

You know, reprieves.

We don't see that as often outside of the death penalty context, where you do see a reprieve sentence sometimes, in remission of fines.

Usually that is going to be part of a broader grant of clemency that someone receives.

A commutation and remission will be a part of that.

Now, if someone had a fine, only penalty, then sometimes they'll just be that remission.

So, you know, that's those are the different ways it's going to play out.

But predominantly we see pardons into a lesser degree, commutations in the United States.

But you know, in terms of, of politics and the role it plays and who doesn't and who doesn't, just to return to that for a second, it is really fascinating that, you know, at the federal level, we have a lot more analysis of the way it works.

In states, of course, there's a much more, broad body of grants and denials because almost all the people, not almost all the people, but the great majority of people in the United States were under criminal justice sentence are in the states.

And there you have some real anomalies.

I mean, you think about Mike Huckabee, who was a very conservative governor of Arkansas, did a really large number of clemencies too, and for him, it was kind of a faith thing.

And, even had one go terribly wrong where somebody that he released went and committed murders, but still believed in clemency after that experience.

Litigally, you have other people who are are timid about it.

To be quite frank, President Biden is one of them.

Unfortunately, President Biden, has been really, slow in granting pardons.

There's been a build up of petitions and he denied a lot, but he's granted very, very few.

And, you know, from his perspective, it appears that it's viewed as a risk that doesn't come with the political reward.

Now, of course, it's a duty of the president to fairly consider clemency petitions.

And so, that timidity is really unfortunate.

You said one of the advantages in the South Carolina example is an apolitical in your mind.

Legally and intellectually uncompromised pathway.

So a committee, or a series of individuals going through a process with due diligence, if you were to take your own state where your university is based, in Minnesota, at the University of Saint Thomas, as an example, in Minnesota, if you look at Governor Walz or Governor Dayton, what's an example there relative to, the federal situation in South Carolina when it comes to these same things?

Yeah, well, we've been in a real period of transition here, actually.

So it's a good case study for that.

When Governor Walz was elected and, you know, came into office and, you know, 2019, it was really a new game because he, was not a lawyer.

He was very human about running the hearings.

And the way it worked at that time in our state was that people who wanted, a pardon or a commutation appeared personally in front of the Board of Pardons, which consisted of the governor, the attorney general, and the chief justice of the Supreme Court.

Now Walz became the chair of that panel, presided over the hearings.

And it was fascinating because he took a very human approach to it.

He spent time listening to both sides.

He, was very solicitous of of victim and victim family members input in cases, but also really seemed to have an instinct to, to grant more than had been historically.

Now there was a, the chief justice of the Supreme Court at that time was very reluctant to ever vote yes.

And there was a unanimity requirement.

All three had to vote yes.

In 2023, there were two major changes that were implemented through statute.

And these are reforms that we pushed for for years.

One was that it went to a 2 to 1 vote on that panel.

And after granting, you know, between 15 and 30% of petitions up to that point, the first morning under the new rule, the first there were 11 petitions up and they were all granted.

So it was a very different world.

Now, many of them were 2 to 1 over a dissenting vote.

The other thing that changed as the hearings were shifted from being in front of that panel to being in front of a commission that was appointed, that's going to lower the pressure on the petitioners and also allow for a broader pipeline and more people to be heard as well.

And we've seen a huge increase in the number of petitions that have been filed.

And of course, the grant rate has gone way up.

So it's become a much more productive system, even only partway into that change.

And then when you look at the specific eligibility criteria, if you will, in South Carolina, Minnesota, respectively.

Federally.

What are we talking about in terms of differences in the way states, constitutionally, or through updates to their legal process over years, you know, evaluate this question so that the governors, and the president have, an understanding of their duty, responsibility, consistent with the privilege to pardon or commute.

Yeah.

I mean, one thing that's really surprising is that the number of jurisdictions where there really aren't any standards, and that includes the federal system.

You know, you look at the grants that, Obama made and how different they were than what Trump did, which is different than what Biden has done there, because there aren't established standards.

It tends to reflect the values of the president.

And you look at Obama, he went to prison, met with some drug defendants, said “There, but for the grace of God, go I.” And it's probably not surprising that the 1,696 commutations that were made were nearly all to drug defendants.

In contrast, President Trump is somebody who's taken with celebrities and people that have been loyal to him and a disproportionate number went to people that reflected those values, who are celebrities or people who had been loyal to him in some way.

And so, you know, when you don't have standards, you're going to have much more of the personality and the values to the executive coming through where we do... Is that true?

At the gubernatorial level too?

It varies from state to state.

And so there are some states where the, governor has a lot of leeway or a commission has a lot of leeway.

One of the things that changed in Minnesota with the new legislation is that we did establish, standards.

There were, you know, specific things to look for in granting that's going to include, the programming that the person pursued their rehabilitation.

How long ago the offense was and things like that.

And what about the, Correctness of the decision.

The judicial decision?

The idea that, there was not complete evidence or sufficient evidence to justify -...the, conviction.

-Yeah.

Is that part of it?

Rarely.

And the reason is that clemency doesn't have a very vigorous fact finding mechanism.

And usually when you have a claim of innocence or wrongful conviction, there needs to be some fact finding done.

And so we tend to have that end up back in court as opposed to coming through the clemency system.

Now, sometimes it will if someone's got a clear DNA, test that exonerates them and for some reason the court can entertain that, then then clemency is often the route that people go.

A lot of times when people hear about my work, they'll say, “Oh, like the Innocence Project.” And I often tell them, no, we're the guilty project.

-[laughs] -That for clemency, what people often need as a first step is that acceptance through responsibility, and in clemency, whether we're talking about commutations or pardons, it really has more to do with time than anything else.

In other words, people who are against clemency are going to tend to focus on the time that the person committed the crime.

You know, this horrible thing that they did in that day.

Whereas those that are promoting the clemency are going to look at the present and say, “Who is this person now?

How have they changed?

What has been the arc of their narrative?” I mean, one of the beauties of clemency, one of the things that makes it human and really the soul of the Constitution is that it allows the rest of that narrative to be told.

Criminal justice, and I was a federal prosecutor.

I've been a state prosecutor.

That's the side I come from.

But the problem with prosecution is that it focuses so narrowly on a single moment in a person's life.

And clemency has this, mechanism for opening that up and allowing what came before the crime, what came after the crime in prison, what can come next all become relevant in a way that we don't see in other parts of criminal law.

So what is more salient, though, is the unfairness of the sentence.

Vis-a-vis the act of criminality that may have been committed and the disproportionality there.

Because this is a mechanism to reduce the prison population on the back end in a significant way.

And I wonder if you believe that, clemency and acts of clemency ought not be so subjective and that there ought to be, in all 50 states or federally, some greater transparency, clarity about what is eligible, who is eligible, and the responsibility of our 50 governors to use this power.

Yeah, and I mean, just going back to to what you were saying just now when I said that, you know, time is important.

Well, sometimes it's not the person that changes that's significant.

It's that the, the law has changed that especially in the federal system, we've seen a number of reductions in, sentencing regimes that weren't made retroactive.

And so you have all these people that are still doing that time.

And this mechanism, clemency is a mechanism that allows us to go back and change that and right size it to fit what norms are today.

And in fact, that's why I got into this in the first place.

I worked for a long time, on the crack powder ratio, the 100 to 1 ratio in the federal system where people are sentenced to the same for one gram of crack as they were for 100g of powder.

And in 2009, I won a case in the Supreme Court, Spears versus the United States, where the court said that judges could categorically reject that 100 to 1 ratio and use a different ratio, which was great, but it wasn't retroactive, so it didn't impact the people who had already been sentenced.

You know, the opinion came out and, one of my friends, Doug Berman at Ohio State, called and said, “Wow!

Well, that was great.

You know, congratulations to what are we going to do next?” You know, I said, “Doug, you know, let's just celebrate this for a minute.” He said, “No, I think we need to starting examining clemency, because clemency is a way that we could, as these things change, get those people who wouldn't get the same sentence today out of prison.” And going back to the politics as an obstacle here.

What's the rationalization for why retroactive was not included in the legislation to begin with?

It is a compromise, frankly.

Yeah.

You know, it is, something where, you know what we've seen several times with legislation is that retroactivity will be in there.

It gets into committee.

They're trading things so that they can get that last vote.

And it's retroactivity that goes.

There's really not a principle behind it.

Because if it's not a fair sentence, it's not a fair sentence.

Now if you've got crimes that involve a victim, the calculus is a little different because there, some people in political office believe that that's a promise to the victim that this person is going to do that much time and they can't alter that.

But drugs, that's just not the case.

We have to establish for the general public the imperatives of shrinking or diminishing the system.

When you talk about the justice system, shrinking it on its face is not necessarily something that is palatable or viewed as a net positive.

If you talk about it as the justice system, if the justice system is large and expansive.

We're talking about the prison, jail, parole and probation populations, right, specifically.

And the imperative of reducing the number of people in jail or prison or on probation and parole.

Now, your work must very much engage with this question of the value of doing that, whether that is, a meritorious and moral thing to do.

And the American public is still out on that jury in my mind about whether that is the ethical or effective thing to do.

Mm hmm.

And how do you best respond to that?

You know, knowing if you agree with my proposition here that at best, you know, that half of Americans think that we should shrink the system or turn people away from the system.

That is jail, prison, probation, parole.

But I would surmise that that there's a good number of Americans who wouldn't see the, importance in, shrinking the number of people who were incarcerated.

Yeah.

And I mean, one thing about clemency that is has an impact more broadly than than just the, the individual case is that at its core is narrative storytelling that you're talking about an individual.

And if you have a case that has become unjust or where mercy is called for, depending on how you view it.

That is not only about that one person, but it is about the system as a whole.

And we see a lot of crossover between clemency in these discussions of broader sentencing themes and real, frankly, within the advocacy community, we often see people whose clemency cases were developed, like Weldon Angelos, for example, then becoming, the exemplar for legislation in his case to reduce certain sentences related to, gun convictions or related to possession of marijuana, or possession with intent.

And so there is crossover.

And that storytelling part can be very powerful, you know, a deeper level too, you know, Christians and Jews will often refer to Micah 6:8, which is “The Lord my God require of me.

But to love justice, to show mercy, and walk humbly with my God.” And I think a lot of times there's this perception of a tension between justice and mercy, justice being the sentence that was imposed originally and mercy being changing that now.

The truth is that any system has to have some of both to have legitimacy.

And in the end, the pathway there is the third part of Micah 6:8 too.

It takes a measure of humility.

And that is one of the things that is hard with clemency is, the humility has to be on the part of the prosecutors.

You know, that that we asked for this and now we support something different because in the federal system, for example, clemency comes through the Department of Justice, this building full of prosecutors and that humility is very hard for people.

And I can say this, having been a prosecutor, I understand why, you know, you think about the job of a prosecutor.

You're standing 12ft away from somebody and you're saying to a judge, this person should be put in prison, put behind bars, caged, you know, lose their marriage, lose their job, not be there when their child graduates from high school, not be there when their mother dies.

That is a moral commitment.

And it's very hard to go in a different direction later.

And so the resistance of prosecutors is, is really a problem with clemency.

And it's a problem when we have systems that route clemency through prosecutors for review as well.

Right.

It reminds me as an analog of this discussion of partisanship and polarization.

The idea of positive or negative polarization.

If you think of justice just as much as economic justice, it is much more in the affirmative vein of empowering people to live their lives, to benefit their communities, not only their pocketbooks, but the economic reality of their neighborhood and their city or town or state.

So, you know, from that perspective, I really hear what you're saying, that, it is about somehow the justice system became, the only way to frame justice rather than the positive ways we could understand the economic justice.

And often people are incarcerated as a result of not having had access to that positive side of justice.

The economic justice.

Right.

Yeah.

That justice has meant, more restriction and the hammer and not anything else.

Not a movement towards healing.

Not a movement towards equity or equality.

But instead restriction and restriction that hasn't been even handed.

Not even handed racially.

Not even handed in terms of, the economic situation that people were subjected to the justice system.

And so you have a... And that's why, if you do think of shrinking the system as enhancing the economic justice, if you don't like the term economic justice because you think it's a progressive or liberal notion, how about just GDP?

-How about just -Yeah.

the economic growth that comes with more people being functional citizens?

And how about their being in proximity to families to be able to embrace some moral value that we hold dear?

So if you come to that conclusion that, that shrinking the system of people incarcerated is a net plus, is it effective and ethical?

Then I want us to dedicate the next few minutes we have to how do we not just do that better in the discourse that is economic justice or whatever you want to call it.

But in practicality, we were talking about retroactively applying some of the new laws versus the power of clemency.

What is the more realistic path forward to shrink the system in the back end in mass?

Is it, formalizing, protocols and rules of clemency, or is it going further beyond the laws that were passed in ensuring that they are applied retroactively or both?

But is one path more, going to be more practically effective?

The answer has to be both.

there's a reason.

It has to be both.

I know there's some people that you know, because of the problems in the federal system.

For example, I've just thrown up their hands and said, you know, let's go for back end solutions that, send things back to the sentencing judge, prosecutor initiated resentencing, compassionate release and things like that.

And that's good.

I support those things.

But you can't do that without clemency being vibrant too.

And the reason is because, when you send it back to courts, you're sending it back to a wildly disparate group of people for review, and you're going to get incredible disparities.

In fact, we've already seen that with compassionate release.

I mean, a year or two in on compassionate release, what we saw was in the Western District of North Carolina, less than 5% of compassionate release petitions were granted.

In Oregon, it was over 60%.

And that's just by district.

That's even taking into account the disparities between judges.

And so clemency has the ability to even that out those cases that were maybe considered for a compassionate release or a back end, solution.

That was systemic, but it goes back to courts.

You're going to have the ability to have another path, which would be clemency.

And last question for this new administration and new Congress in 2025, and all of the state houses and governor's offices that are going to turn over, what's your advice for how to manage this, and, and engage in, in the process of clemency, more fulsome, and more fully.

Yeah, I think that instead of going right to outcome, there has to be more examination of process.

You know, in the federal system, people are always saying “No, they need to grant more.” True.

But what they need to do is change their system so that it can grant more.

Right now, there's eight levels who review sequential to one another before it gets to the president.

That's craziness.

Of course, there's not much getting through.

And most of it is in the Department of Justice, which has an inherent conflict.

They're the ones that sought the sentence in the first place.

So this may be a case where the feds should look at not just South Carolina, but other states, because there's a more, there's a real, there's an actual process that's not just delay, delay, delay.

Correct, and there's processes that are productive, fair, that end up with well vetted clemency grants that make us all better because we have citizens who are free, are living alongside us, and who are safe because we are.

Across party lines, you're saying Democrats, Republicans, Democratic governors, Republican governors.

And I think you're suggesting, Mark, that this is not like an ethics code for the Supreme Court.

This is a little bit more doable than that.

I mean, that may never come to fruition.

No.

This could actually come to fruition.

And we could assess the laboratories of democracy in our 50 states to make it better.

That's right.

And you know, one thing I just want to point out is that we had a brief moment where, there was a different process, and that's under a President Ford.

He had a pop-up, clemency commission that considered Vietnam, era offenders.

And they granted over 6000, petitions.

And that was remarkable, unprecedented.

And then, of course, we went back to the the process that doesn't work.

Mark, thank you so much for your insight today.

My pleasure.

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